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Sunday, April 13, 2008

Henderson v. Peake in Court of Appeals for Veterans Claims

"The [Court of Appeals for Veterans Claims] recently heard oral argument in the case of Henderson v. Peake. The question before the Court was whether it can have jurisdiction over cases where a veteran files his or her Notice of Appeal (NOA) late because of mental or physical disabilities.

"Some courts have permitted late filing in these circumstances under a theory of equitable tolling, but a recent Supreme Court decision, Bowles v. Russell, has made courts question whether such late filings may still be permitted.

"In Bowles, the petitioner was attempting to appeal the denial of a writ of habeas corpus to the Sixth Circuit, through the benefit of 28 U.S.C.A. § 2107(c) (West 2002), which has a specific, limited time period for filing. A judge gave him a deadline that was longer than the statute’s time period, and he filed his petition within the period allowed by the judge but two days later that the period stated in the statute. Finding that the statute’s filing deadlines were mandatory, the Supreme Court held that the Sixth Circuit could not equitably toll the deadline and the filing was therefore late. The Supreme Court also expressly overruled an earlier case that allowed a late filing.

"Paralyzed Veterans submitted a brief as amicus curiae on behalf of Mr. Henderson, arguing that the Supreme Court’s decision has no application to the CAVC’s equitable tolling case law, which is premised on the Supreme Court’s decision in Irwin v. Department of Veterans Affairs, a case which was not mentioned or overruled in the Bowles decision.